How would Congress act in a world without judicial review? Canlawmakers be trusted to police themselves? This Article examinesCongress’s capacity and incentives to enforce upon itself “the law ofcongressional lawmaking”—a largely overlooked body of law that iscompletely insulated from judicial enforcement. The Article exploresthe political safeguards that may motivate lawmakers to engage inself-policing and rule-following behavior. It identifies the majorpolitical safeguards that can be garnered from the relevant legal,political science, political economy, and social psychology scholarship,and evaluates each safeguard by drawing on a combination oftheoretical, empirical, and descriptive studies about Congress. TheArticle’s main argument is that the political safeguards that scholarsand judges commonly rely upon to constrain legislative behavioractually motivate lawmakers to be lawbreakers.
In addition to providing insights about Congress’s behavior in theabsence of judicial review, this Article’s examination contributes tothe debate about judicial review of the legislative process, the generaldebate on whether political safeguards reduce the need for judicialreview, and the burgeoning new scholarship about legislative rules.